Balbir Singh vs Delhi Transport Corporation Through

OA No.4572/2017 was disposed of vide orders dated 22.02.2019. The applicant has preferred the review application in respect of these directions.

In the instant case, applicant was drawing Rs.50,500/-p.m. at the time of retirement. However, when the entire service record was reviewed at the time of retirement, it was found that the 2nd ACP was erroneously granted by the respondents w.e.f. 07.11.2004 whereas, ACP was actually due from 25.02.2005. With this postponement, the last pay drawn worked out to Rs.45,356/- and not Rs.50,500/-.

Accordingly, certain recoveries became due. Even though these recoveries were quashed, the fixation of retiral dues on the basis of corrected last paying salary as Rs.45,356/- was upheld.

Applicant has now preferred this RA seeking review of these directions. Two averments have been made as under:

(a) Applicant had not admitted that second ACP was inadvertently granted w.e.f. 07.11.2004 whereas it was actually due from 25.02.2005. In this connection, para 3 (a) of the RA is reproduced below:

"a) Because, in para 12 of the judgment, the Hon‟ble Tribunal observed that „it is admitted fact that 2nd ACP was inadvertently granted w.e.f 7.11.2004, whereas it was actually due from 25.2.2005 in view of the adverse ACR for the calendar year 2000" which is clear error on the face of record, as the applicant never admitted this fact"

(b) The applicant had also mentioned in RA that even if the date of 2nd ACP is postponed from 07.11.2004 to 25.02.2005, the last pay of the applicant remains unchanged. Further, applicant has also pleaded that the figure of Rs.45,356/- was not mentioned anywhere. In this regard, the averments made in RA are reproduced below:

"3(b) Because, even after change of date of 2nd ACP from 7.11.2004 to 25.2.2005, the last pay of the applicant remained same, as w.e.f. 1.1.2006 from the date of implementation of 6th CPC, the pay of the applicant remained same.

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3(d) Because, in para 12 of the applicant the Hon‟ble Tribunal observed that "therefore, working out of the retiral dues, i.e. pension, gratuity etc. on the basis of last salary as Rs.45,356/- (revised as per 7th CPC) is taken to be in order and is upheld" which is error on the fact of record, as the last salary of the applicant even after changing the date of 2nd ACP and after refixation of pay in file only, was Rs.49000/- as on 31.7.2017"

The applicant has also presented a table in the RA that pay fixation as of 31.07.2007 works to Rs.49,000/- with date of 2nd ACP being corrected to 25.02.2005. In view of this, it has also been pleaded that:

"In view of the above, it is clear error on the face of record of the judgment, observing the last pay of the applicant was Rs.45,356/- as there is no such figure, neither in the counter affidavit nor in service record. Copy of the service book is annexed here as Annex.RE-2."

Accordingly, following prayer has been made in this application:

"That the Hon‟ble Tribunal may graciously be pleased to pass an order of reviewing/recalling the judgment dated 22.2.2019 in OA No.4572/2017 and decide the OA of the applicant afresh after considering the relevant facts stated in the present petition."

Matter has been reviewed.

6.1 In respect of para 3 (a) supra, it is correct that this admission of error was on behalf of the respondents and not by the applicant. The judgment had taken this entire factum and merit of postponement of 2nd ACP from 07.11.2004 to 25.02.2005. It was on merit of the case that this postponement was upheld.

6.2 In respect of para 3 (b) supra, para 5 (a) of the grounds taken by the applicant in OA reads as under:

"a) Because, one day before the retirement on 30.8.2017, the respondents refixed the pay of the applicant w.e.f. 7.1.2004 i.e. from the date of granting 2nd financial upgradation only on file without passing any order and without given any show cause notice to the applicant and vide impugned order dated 30.8.2017 decided to recover the Rs.1,55,906/- from the gratuity amount of the applicant. It is submitted that the respondents also reduced the pay of the applicant from Rs.50500/- to Rs.45356/- at the time of retirement which is totally illegal and arbitrary and against the principle of natural justice."

Thereafter, further para 4.6 of the rejoinder by the applicant in OA reads as under:

"Para 4.6 of the counter is wrong as stated and hence same is denied. In reply it is submitted that just one day before the retirement on 30.8.2017, the respondents refixed the pay of the applicant w.e.f. 7.1.2004 i.e. from the date of granting 2nd financial upgradation only on file without passing any order and without given any show cause notice to the applicant and vide impugned order dated 30.8.2017 decided to recover the Rs.1,55,906/- from the gratuity amount of the applicant. It is submitted that the respondents also reduced the pay of the applicant from Rs.50500/- to 45356/- at the time of retirement. Para 4.6 of the OA is correct and same is reiterated here again."

In this context, the applicant, while pleading in the OA, has only insisted that pay fixation indeed to be kept as Rs.50,500/- p.m. only and not reduced.

In view of the averments made in the OA and in the rejoinder, the figure of revised pay fixation of Rs.45,356/-p.m. was in the knowledge of applicant, and therefore, averment made in RA made now in para 3(b) and 4 supra is not acceptable.

However, there was no occasion for Tribunal to examine the correctness of pay fixation after postponement of 2nd ACP as pleadings in this regard were not made by any of the parties.

In view of the foregoing, since the aspect of admission by respondents does not appear to be clear in para 12 of the judgment dated 22.02.2019, this para 12 stands corrected as under:

"12. Another question for decision is as to what will be the basis on which to fix the retiral dues, i.e. pension and gratuity. The service record of an employee is reviewed at the time of retirement to finalise retiral dues and if any inadvertent error has occurred earlier, it gets rectified.

In the instant case, it is admitted by the respondents that the 2nd ACP was inadvertently granted w.e.f. 07.11.2004, whereas it was actually due from 25.02.2005 in view of the adverse ACR for the calendar year 2000. This error came to be detected at the time of applicant‟s superannuation. The correction for the same is, therefore, in order and is upheld.

Therefore, working out of the retiral dues, i.e. pension, gratuity etc. on the basis of last salary as Rs.45,356/- (revised as per 7th CPC), is taken to be in order and is upheld. The pension and gratuity etc. shall have to be worked out on this basis and all retiral dues released if not released so far."

In case applicant is now of the view that with postponing the date for 2nd ACP from 07.11.2004 to 25.02.2005, the last pay works to a figure different than Rs.45,356/-, he is at liberty to seek remedies as per law. No cost.